USARK v Jewell et al.: An Update as of April 9th

There has not been much action since the defendants in USARK’s lawsuit filed their Reply in support of their Motion to Dismiss USARK’s complaint.

On or around March 25th, USARK issued a statement, ostensibly written by Kelley Drye (“KD”), defending their performance to date in the lawsuit. Since that time, two things have been filed.

First, on March 31st, KD partner, David E. Frulla, filed his Appearance on behalf of USARK. Although Shaun Gehan will apparently remain on the case, KD has assigned a partner to the matter now as well. This should be a welcomed change. Frulla has impressive credentials. Although a partner with his qualifications is going to come at a handsome price, his experience and oversight can only help.

Second, on April 1, 2014, USARK filed its Motion for Oral Argument. The Court has discretion to hear oral arguments on the Motion to Dismiss or to rule on the pleadings. In this case, USARK feels that the complexities of its position require clarification in the form of oral arguments to the Court. No decision yet as to if and when the Court will hear oral arguments.

In its March 25th statement, KD claims that they have developed, a “reasonable budget” for this lawsuit. However, they have declined to name a figure. The frenetic fund raising that ushered in this lawsuit seems to have subsided to a certain degree, but stating their fundraising goals and how close they are to achieving those goals would probably assist with their fundraising efforts.

KD goes on to opine that discovery in this case will somehow be cheaper because the government is required to produce its record. Regardless of the source of the documents, properly preparing a case for litigation will require a thorough review of those documents, a review that must now be done by two partners at two law firms. Although discovery requests can be expensive, the bulk of the fees incurred lie in reviewing, analyzing and strategizing on how to use those documents.

Nonetheless, KD has a budget. Hopefully that budget is not in the nature of a flat fee. After all, if a buyer offers to pay a seller a $10,000 flat fee and tells the seller to send him snakes, the seller has the option to send one normal ball python or 25 coral glow ball pythons. It is not difficult to surmise what the buyer is likely to receive. The more snakes he sends, the lower his profit margin. Law firms operate on the same economics as any other service business.

This is not a simple case and it is, in some respects, a case of first impression. We continue to like some of USARK’s legal arguments, but winning them will require sophisticated lawyering, creative and competent arguments, and more attention to detail. One thing that KD did not address in their post was why USARK’s response brief to the Motion to Dismiss was filed with so many errors that a Notice of Errata was required.

KD has incorrectly stated that Herp Alliance has criticized the lawsuit for not seeking monetary damages. We have never done so, but we have taken the time to summarize issues at various times when explanations were not forthcoming elsewhere, and we will continue to do that. Rather than wasting time in a defensive posture to our posts, we wish KD would focus their attentions and their billable hours on the case at hand, a case that has drastic ramifications for the Reptile Nation, for herpetoculture, and to the thousands of species whose ultimate survival may depend on captive breeding.

We have said every time we have mentioned this suit that those who have an interest in large constrictors should dig deep and donate to this lawsuit, and we will repeat that request now.